Court File and Parties

CITATION: R. v. Bruno, 2017 ONSC 6717

COURT FILE NO.: CR-16-00000106-00AP

DATE: 20171115

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Francesco Bruno

BEFORE: Justice S. Nakatsuru

COUNSEL: Melissa Mandel, for the Crown Lisa Jorgenson, for the Respondent

HEARD: October 20, 2017

ENDORSEMENT

[1] Even the most learned and experienced of us make mistakes. So it is with judges. In this ordinary summary conviction trial where Mr. Bruno was charged with failing to provide a suitable sample of his breath to the police after driving, the trial judge made a mistake when he acquitted Mr. Bruno. Despite he being a most learned and experienced trial judge. For the following reasons, I am allowing the Crown’s appeal of the acquittal and ordering a new trial.

[2] A long recital of the facts and evidence is not necessary. Mr. Bruno was taken from the scene to the hospital by the police because he had failed to give a suitable sample into the ASD. Mr. Bruno then appeared to go into a form of medical distress. He was arrested and read an approved instrument demand. At the hospital, he did not give a breath sample to the qualified breath technician after he spoke to duty counsel to get legal advice. Mr. Bruno became agitated. The police officers testified that he began to yell and unequivocally refused to take part in the test.

[3] Mr. Bruno testified at his own trial. He testified about his medical condition where he said he was feeling chest pains and felt as if he was going to die. He testified that he was trying to cooperate. He asked the police to seize the blood sample which had already been taken by the nurse instead of giving a breath sample at the hospital.

[4] The trial judge did not believe Mr. Bruno. The judge was quite incredulous and dismissive of his evidence. He found that the police were acting professionally and that Mr. Bruno was being uncooperative. Despite these factual findings, the judge acquitted the respondent.

[5] The flaw in the acquittal is how the judge treated the issue of “reasonable excuse” under s. 254(5) of the Criminal Code. The Crown argues that the judge made a serious error of law in both defining the test and applying it to the facts as he found them. The respondent concedes that at certain portions of his reasons, the trial judge misstates the test. However, when the reasons are read as a whole and in the context of the record, the respondent submits that the trial judge did properly apply the correct test. This was simply a case of a judge misspeaking what the test was.

[6] This test is well-established. Where “reasonable excuse” is raised in a case, the onus is on the accused to prove this defence on a balance of probabilities: See R. v. Goleski, [2015] S.C.J. No. 6 affirming 2014 BCCA 80, [2014] B.C.J. No. 347 (C.A.); R. v. Moser, 1992 2839 (ON CA), [1992] O.J. No. 602 (C.A.) at para. 15, 18; R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.A.C.) at para. 38.

[7] Looking at the reasons as a whole, the trial judge reversed the onus on the Crown to disprove “reasonable excuse” beyond a reasonable doubt. To explain, I will review the reasons in a summary way before getting to the critical passages.

[8] The trial judge set out what the main issue was at the beginning of his decision. He framed it as it being whether the Crown had proven beyond a reasonable doubt Mr. Bruno’s intent to commit the offence or whether reasonable doubt was raised by any physical incapacity on his part to provide a suitable sample. This is obviously an issue of mens rea. While there is some disagreement in the authorities as to what the actual intent is that needs to be proven, there is no question it remains an essential element of the offence and the onus is on the Crown to prove this beyond a reasonable doubt. The appellant submits that proof of intention was not a real issue here because at the hospital, the accused explicitly refused to provide a sample. She argues that this is not a case where the accused tried but was unable to provide a sample. I will leave this aside for the moment as it is not the source of the fundamental error made later.

[9] The judge properly does articulate the test when it comes to proof of intent. He also refers to the principle in W.D. quite rightly. He gets the test right as he outlines the position of the parties. However, the language of “reasonable excuse” starts being used as he canvasses these submissions without the proper articulation of the onus and standard of proof.

[10] The decision then gets to “Analysis”. As the judge goes through the types of scenarios, refusals commonly arise in and as he goes through some principles of law, the trial judge gets the test correct when he states that a person can exonerate himself by raising on a balance of probabilities the defence of reasonable excuse. Immediately following, he gets it wrong when he states that “once raised by the evidence the Crown must prove the absence of “reasonable excuse.” It is impossible to reconcile these two sentences in the decision. If this was all there was to the appellant’s argument, I would be inclined to follow the respondent’s submissions on this. However, there is more.

[11] The judge then acknowledges that the actus reus was not in dispute. He points out that mens rea was the pivotal issue. However, in acknowledging that, he does not alert to the additional issue of reasonable excuse raised in the case. When he does get to this issue, he expresses the test in this way:

As a matter of common sense, the presence or absence of a complaint about a physical or respiratory difficulty at the time of the breath demand is a circumstance that logically speaks to the reasonableness and credibility of the excuse, and vice-versa. The burden of raising an excuse is on the defendant, on a balance of probabilities, meaning there is an evidential burden on the Defence only to produce a sufficient foundation of something that is or may be capable of being a reasonable excuse, that is, a recently perceived danger to his health, and that he held this belief reasonably and honestly as a result of his perception of facts know to him at the time of the refusal.

As with all defences, however, the court must be satisfied that there is an air of reality to it before it is obliged to consider it. Once this evidential burden has been satisfied, however, the persuasive burden remains on the Crown to prove beyond a reasonable doubt that the defendant did not have a reasonable excuse or explanation for failing to provide an adequate breath sample or samples.

[12] It is in these passages, the judge makes the mistake that requires reversal of the verdict. He again correctly states the onus and standard of proof being on the defendant. But he then explains what he means by that. He states it is only an evidential burden. That once a factual foundation for it is raised, then the burden shifts back to the Crown to disprove reasonable excuse beyond a reasonable doubt. This is wrong. This is not just innocent misspoken phraseology. The judge refers to reasonable excuse as being like all other defences (i.e., self-defense). This falls into error.

[13] The judge then analyses the evidence of Mr. Bruno and the police officers. He does not believe Mr. Bruno and finds greater favour with the officers. He then concludes his decision by stating:

If the burden of proof was on a civil standard of balance of probabilities, the court would have no difficulty whatsoever in deciding against the defendant. On all the evidence, however, the court finds that the defendant’s excuse does raise a reasonable doubt under step two of W.D. There was at least an air of reality that he was incapable of providing a breath sample. The fact that he offered to give a blood sample raised the spectre of compliance rather than refusal in this case.

[14] In my opinion, the judge applied the wrong test to the evidence before him. Given his view that a reasonable excuse placed the persuasive burden on the Crown to disprove it, he acquitted the accused despite not believing him. This is a reversible error of law.

[15] The Crown submits that given the judge’s findings and the evidence that I should substitute a conviction. Given the passage set out above, this is tempting. However, I will order a new trial for two reasons. First of all, the factual findings with respect to what occurred between the respondent and the police at the hospital are less explicit than I would want them to be. I am not confident that the legal error did not taint some of these findings. Secondly, the respondent had brought an application alleging a violation of his right to counsel under s. 10(b) of the Charter. Given the acquittal, it is not surprising that the judge dismissed that application without reasons in his final decision. That said, it would not be in the interests of justice that a conviction be now entered without a proper decision being made on this separate issue.

[16] For these reasons, a new trial is ordered. Mr. Bruno is ordered to attend at 9:00 a.m. Courtroom 111, Old City Hall, 60 Queen Street West, Toronto on November 29, 2017, to set a date for a trial.

Shaun Nakatsuru J.

Date Released: November 15, 2017